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2016 (4) TMI 1295 - HC - Indian LawsMaintainability of appeal - appeal filed beyond 60 days - Section 378(5) of Cr.P.C - order of acquittal - In the private complaint cases, for the victims, whether the right of appeal as provided in proviso to Section 372 of the Code of Criminal Procedure is available or the only option for them is to seek leave under Section 378(4) Cr.P.C ? Held that: - the term 'victim' found in the Proviso to Section 372 Cr.P.C shall not include a victim, who is a complainant in a complaint case and that the term 'victim' used in the said Proviso shall be confined to the victims in cases instituted otherwise than on a complaint. In the case on hand, the criminal case was instituted on the file of the trial Court on a complaint made by the respondent/complainant. In fact, the offence is a non-cognizable offence and hence, there can be no other mode of institution of the criminal case than by preferring a complaint to the Magistrate. The offence alleged is one punishable under Section 138 of the Negotiable Instruments Act, 1881. As the case ended in acquittal before the trial Court, the remedy available to the respondent herein (complainant) was to approach this Court (High Court) under Section 378(4) within the period stipulated in Section 378(5) seeking Special Leave to file an appeal against acquittal. Instead of adopting such a procedure, the respondent herein (complainant) chose to prefer an appeal under the Proviso to Section 372 Cr.P.C before the Sessions Court and the learned Appellate Judge either without considering the scope of the Proviso to Section 372 or in an erroneous interpretation of the said provision, assumed jurisdiction and decided the appeal which went against the appellant herein (accused). The appellant is right in challenging the judgment of the learned lower Appellate Judge on the ground of absence of jurisdiction. Whether a complainant, who is also a victim, should seek special leave, from the High Court as provided under Section 378(5) of the Code or whether as a matter of right, he can avail a statutory right of appeal is one question, which arises herein. In the cases arising out of Section 138 of the Negotiable Instruments Act, invariably it is the complainant (either as a victim of the offence or otherwise), who sets the law in motion. But, in the case of other offences under the Indian Penal Code or other Enactments, the position may not be the same. In those cases, the law could be set in motion either on a police report or through a private complaint. Hence, an interpretation of Section 372 vis- -vis Section 378(4) in these matters will also have a bearing on the other types of offences also. The correct law, as emerging from the Scheme of the Code, would be that the right of a victim to prefer an appeal (on limited grounds enumerated in proviso to Section 372 of the Code) is a separate and independent statutory right and is not dependent either upon or is subservient to right of appeal of the State. In other words, both the victim and the State/prosecution can file appeals independently without being dependent on the exercise of the right by the other. Moreover, from the act or omission for which the accused has been charged, there may be more than one victim and the loss suffered by the victims may vary from one victim to the other victims. Therefore, each of such victims will have separate right of appeal and in such appeals, the grievance of each of the appellant may be different. Appeal dismissed being not maintainable.
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